'IS A FILING FEE REQUIRED TO BE PAID BY A PERSON FILING OBJECTIONS IN A PROBATE PROCEEDING PURSUANT TO SECTION 5, CHAPTER 51, LAWS OF 1951, RCW 36.18.020?'

"IS A FILING FEE REQUIRED TO BE PAID BY A PERSON FILING OBJECTIONS IN A PROBATE PROCEEDING PURSUANT TO SECTION 5, CHAPTER 51, LAWS OF 1951, RCW 36.18.020?"

Clerks of superior courts cannot require the payment of filing fee for filing objections in a probate proceeding.

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                                                                     July 8, 1952

Honorable Lawrence Hickman
Prosecuting Attorney
Whitman County
Seattle‑First National Bank Bldg.
Colfax, Washington                                                                                                              Cite as:  AGO 51-53 No. 344

Dear Sir:

            Acknowledgment is made of your letter dated June 26, 1952, in which you requested an opinion in answer to the following interrogatory:

            "Is a filing fee required to be paid by a person filing objections in a probate proceeding pursuant to section 5, chapter 51, Laws of 1951, RCW 36.18.020?"

            It is our conclusion that clerks of superior courts cannot require the payment of a filing fee for filing objections in a probate proceeding.

                                                                     ANALYSIS

            RCW 36.18.020, section 5, chapter 51, Laws of 1951, with which we are concerned, reads as follows:

            "In probate proceedings, the party instituting such proceedings shall pay, at the time of the filing of the first paper therein, a fee of six dollars; upon the  [[Orig. Op. Page 2]] filing of a petition for the sale of real estate, there shall be paid at the time of filing such petition a fee of three dollars; upon the filing of a final account in the settlement of the decedent's estate, there shall be paid a fee of six dollars; for filing any petition to contest a will admitted to probate, there shall be a fee of twenty-five dollars;"

            The portion of this section of the RCW treating the subject of filing fees in probate proceedings is for all practical purposes a reenactment of section 1, chapter 56, Laws of 1907, section 497, Rem. Rev. Stat.

            The entirety of the above cited section of the law fixes a schedule of fees to be charged by clerks of the superior courts.  It fixes the fees to be charged in civil actions or proceedings for the first appearance of the several parties thereto, and the judgment fee to be paid upon the termination of the action.  However, one paragraph as quoted, exclusively treats the subject of fees to be paid in a probate proceeding.

            We believe that the portion of the statute directed at fees in probate proceedings is in reality a proviso.  As noted in the preceding paragraph, a general fee schedule is established.  The legislature then set forth the fee schedule in probate proceedings which, as stated, is an exception or proviso to the general fee charge.  The intent of a proviso is to restrain and/or to except something which would otherwise be included in the general or enacting clause of the statute.

            "'* * * . . . The exception of a particular thing from the operation of the general words of a statute shows that in the opinion of the law-maker the thing excepted would be within the general words had not the exception been made.'  2 Lewis' Sutherland Statutory Construction (2d ed.), 670, § 351."  As quoted inMcKenzie v. Mukilteo Water District, 4 Wn. (2d) 103, p. 114.

            It is noted that no fee is provided for filing objections in a probate proceeding.  We think that had the legislature intended that a fee should be charged for the filing of objections in such proceedings, in addition to those provided in the principal action, such fee would be specifically fixed in the schedule of fees which the legislature has prescribed for the official services of clerks of  [[Orig. Op. Page 3]] the superior courts.  The filing of objections is auxiliary to the principal proceeding and therefore does not fall within the purview of the fee schedule.

            We are of the opinion that clerks of the superior courts cannot require the payment of a filing fee for filing objections in a probate proceeding.

Very truly yours,

SMITH TROY
Attorney General

J. HOUSTON VANZANT, JR.
Assistant Attorney General